Experts: NSA lawsuit could break new legal ground

The ACLU is arguing on its own behalf as a Verizon customer. | AP Photo

But Paul Rosenzweig, a former deputy assistant secretary for policy in the Bush-era Department of Homeland Security, pointed to another pending case that changed shape after a recent Justice Department admission. “On drones, official people from the president on down spoke about the program and the courts still didn’t hear the case, saying the program was still a state secret,” he said.

In this case, “it’s not a bunch of officials talking about it, it’s an unsanctioned leak, one that I’m sure that the government is going to prosecute to the fullest extent it can” — which may mean the government will try to argue that the program’s workings are still a state secret.

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Still, as Obama, Director of National Intelligence James Clapper and other senior administration officials weigh in, “they could wind up talking about the program enough to get to a point where it’s not seen as classified.” Clapper’s declassification of the existence of the phone monitoring program could also be seen as enough evidence to move forward.

And if the courts do move forward, they will in part be looking to the precedent of the Supreme Court’s 1979 ruling in Smith v. Maryland. In that case, Justice Harry Blackmun wrote that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”

With the development of new technology, some justices have begun to voice doubts about that decision. When the court ruled in 2012 that the government could not track a suspect using a GPS device attached to his car without getting a warrant, Justice Sonia Sotomayor wrote in a concurring opinion that the approach established by Smith “is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”

“I’m not confident where the courts are going, especially after Sotomayor raised the issue,” said Ron Sievert, who spent 25 years as a Justice Department attorney working on national security and criminal cases, and believes the NSA’s phone surveillance program is constitutional.

If he were arguing for the government in the ACLU case, Sievert said he would be “pounding the podium how you can’t eliminate these basic screening tools.”

But because of the sophistication and widespread use of technology, “there may be a changing view of privacy in society,” Sievert said. A few decades ago, callers knew that others might hear them on a party line. Now, he says, many of his students at Texas A&M and the University of Texas School of Law are surprised to learn that law enforcement officials can access email records.

Stone, of the University of Chicago, said that while he agrees with Sotomayor’s view, it is “clearly pretty settled doctrine that you have no reasonable opportunity for privacy when in an agreement with a third party,” such as a phone company or Internet provider.

Plus, he said, “the very fact that the government’s doing it to everybody can be an argument of constitutionality,” just as it’s acceptable for police to stop every driver at a roadblock but not to pull over drivers without cause.

“I don’t think there are five votes that go any other way” than to keep the surveillance program in place, he added. “But it would be a landmark case if they did something else.”

“If I were a betting man, I would say the ACLU will lose,” said Rosenzweig. “But I wouldn’t be surprised if they win.”